JUDGING CRIMES

The year's end always brings stories about crime stats.  The New York Daily News has a story headlined "New York started with 8 murders in 1887."  If you're tempted to believe that number reflects the real homicide rate that year, they were building a bridge for your purchase. 

It might seem relatively easy to count up homicides in a densely-populated urban center, but the late Eric H. Monkkonen and Roger Lane have both documented the almost comical difficulty in ascertaining 19th century New York's (or, rather, New-York's) homicide rate.  The coroners records don't match those of the police, and neither tallies with the newspapers.

One difficulty common to the era is memorably depicted in Willa Cather's masterprece My Ántonia, with the coroner debating  whether a dead man was murdered with an ax or shot himself.  That seems incredible today, but the people determining cause of death in the 19th century weren't forensic pathologists working in laboratories, or even in laboratory conditions. 

Sometimes the coroner's jury literally held the inquest over the body in question, as in this 1859 case of a well-dressed young woman's body found floating in the water off Brooklyn: "Mr. Bennett, the Coroner, living at Bay Ridge, was notified, and soon arrived at the place.  A Coroner's Jury was impanneled on the beach, with Dr. Francis Mahan as the foreman."  The doctor-foreman, we are informed, "made but a casual examination, sufficient, however, to satisfy him that the deceased had been a mother."  The coroner identified the corpse by leaving it in a room and inviting the neighbors in. 

Lane or Monkkonen (I forget which) documents the way New York authorities classified almost all bodies pulled out of the water as accidental deaths.  There was no such thing as forensic evidence in those days.  Sherlock Holmes was cutting edge - it's a testament to Conan Doyle's skill as a writer that we don't even notice the gee-whiz technology that was a major part of the stories' original appeal.  (Though I prefer the Major Gerard stories, myself.)

Because 19th century prosecutions depended almost entirely on testimony or confessions, if you didn't have either of them it was little more than guesswork to return a verdict of death by homicide.  That's what the figure of 8 murders in 1887 means - 8 unattended deaths were, in the modern parlance, cleared.

Steven D. Levitt's Freakonomics blog at the New York Times has, with no indication of irony, recently been harping on the tendency of "the media" to misrepresent crime statistics.  When the Times congratulates itself for not being part of the media, you know something is up. 

While obviously it is unalloyed good news that New York's homicide statistics continue to drop, nonetheless you'd think someone who bills himself - or, more likely, passively went along with his publisher's marketing department billing him - as a "rogue economist" would want to give a little thought to what the statistics are measuring.

As I've pointed out many times, the lethality rate of knife and bullet wounds has dropped by two-thirds just since 1960.  (See post 34 and post 118.)  I ran across a particularly vivid illustration of this phenomenon the other day:

As Geddes approached the white car, expecting then to fight defendant, the driver side door opened. Geddes then heard a gunshot. Geddes saw defendant get out of the car, and he realized he was being fired at. The initial shot missed Geddes, but as he turned to flee, a second shot hit him in the buttocks and he fell to the ground. Geddes was hit twice more, and then he turned over on the ground and saw defendant approaching with the gun. As Geddes testified, "[defendant] was walking up on me, stood over top of me, [and] started shooting me."

 As Geddes further recounted, defendant, standing over Geddes, then continued to fire at him, hitting him several times, in the stomach, legs, arm and hand. Meanwhile, Geddes tried to roll away and cover his face from the gunfire.

The treating physician confirmed the obvious, that "without emergency treatment, Geddes would have died from his wounds."   The doctor counted eight bullet wounds.  It wasn't that long ago that eight close-range bullet wounds were not survivable.

The point is that the homicide rate is not the same as the rate of potentially-lethal violence, and the second is in many respects (though obviously not to the funeral attendees) the more important figure.  The great medical journalist Atul Gawande described this phenomenon from another perspective two years ago in the New England Journal of Medicine:

Combat deaths are seen as a measure of the magnitude and dangerousness of war, just as murder rates are seen as a measure of the magnitude and dangerousness of violence in our communities. Both, however, are weak proxies. Little recognized is how fundamentally important the medical system is — and not just the enemy's weaponry — in determining whether or not someone dies. U.S. homicide rates, for example, have dropped in recent years to levels unseen since the mid-1960s. Yet aggravated assaults, particularly with firearms, have more than tripled during that period. The difference appears to be our trauma care system: mortality from gun assaults has fallen from 16 percent in 1964 to 5 percent today.

We have seen a similar evolution in war. Though firepower has increased, lethality has decreased. In World War II, 30 percent of the Americans injured in combat died. In Vietnam, the proportion dropped to 24 percent. In the war in Iraq and Afghanistan, about 10 percent of those injured have died.

It's foolish to think, as Leavitt seems to, that better results from emergency medical care necessarily means that America is becoming significantly less dangerous for the vulnerable.

Vulnerability is the other obvious variable Levitt seems oblivious to.  Not all Americans are equally vulnerable to criminal violence.  For instance, this Bureau of Justice Statistics report says that in 1993, the national violent crime rate per 1,000 persons was 50.  By 2005,  the number had dropped by 58% to 21.  Exceptionally good news....

... until you look at the violent crime rate for those living in households with incomes under $7,500 - the destitute.  Their violent victimization rate in 2002-03 was 47.4 - almost the same as the national bad-old-days figure.  Still, by 2004-05 the victimization rate for the poorest had dropped dramatically to 38.1, just 55% above the national average.   

So does that mean it's just taking a little longer for increased safety to trickle down? Unfortunately, the victimization rate for those earning $7,500-$14,999 - not exactly Easy Street - increased by 5.6 over the same period.

The drop in crime rates heralded by Leavitt is, to an uncomfortably large extent, a drop in the rate at which middle class and wealthy people are victimized.  Which is a good thing, of course.  But ....

A lot of the year-to-year change is just random variation, like talking about the average temperature for this time of year.  Only long-term trends mean very much, but a comparison of long-term victimization rates needs to take into consideration changes in people's behavior over the same period of time.   Do people live the same way today as they did in 1960?  1970?

Just think for a moment about car alarms.  Or cell phones (very handy for calling 911 - another reason for the falling lethality rate).  Or gated communities.  Or security guards escorting you to your car in the locked parking garage.  Or indoor malls.  Or hitchhiking.  Or women other than prostitutes walking around alone at night.  Or metal detectors in airports, courthouses, even high schools.  Or elementary school lockdowns.   Or ...

We live much differently today than our parents and grandparents did.  Many of the changes are welcome signs of progress.  But not all.   One of the most significant reasons for the falling crime rate in America is that those of us who can afford it spend so much time, money and energy protecting ourselves.  That's one reason the crime rate has dropped much faster for the well-to-do: they can pay for the protection the state no longer provides. 

The responsibility for fighting crime has, to an underappreciated extent, been shifted from the community to the individual.  Now, why doesn't Freakonomics figure out some way to quantify that?

Ronald Dworkin's work is routinely described with such daunting superlatives as "the most important systematic contribution to Anglo-American legal philosophy made since the mid-1960s" (hard to tell if that's intended as a compliment, and you have to pay money to view the concluding paragraph online, so I guess we'll never know), although it seems strangely unphilosophical to dye one's hair, as he appears to have done in this official photo.  That magisterial stare, and then that hair, like Caesar wearing a propeller beanie.

Now, far be it from me to be judgmental.  It's certainly no more ridiculous for a 76-year-old philosopher to have blond hair than it is for Robert Plant, at age 59, to be prancing around with a full head of ringlets. 

Well, no, I take that back.  It's more ridiculous, after all, since men who sing soprano have long been known for non-receding hairlines, according to this remarkably scary-looking hair doc.

 Anyway, Dworkin published a piece last summer in the New York Review of Books telling his readers that the conservatives on the Supreme Court spent the 2006-07 term "overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed."  The doctrines being overruled "aimed at ... establishing a criminal process that is fair as well as effective."

No, really, I'm not kidding.  Click on the link if you don't believe me.  He really, honestly used those two adjectives to describe our criminal justice system.  Has anyone else done so, in your memory?

But then, if you examine the words closely, you'll see he didn't actually say that the doctrines succeeded in establishing a criminal process that was either fair or effective, only that the justices aimed to.  And then you can define the adjectives in various ways.  "Fair" can mean that a guilty-as-sin murderer has a 50/50 chance of walking.  What, after all, is fairer than a coin flip?

Still, I don't mean to be mean.  Dworkin only practiced law for four years, quitting while Barack Obama was still in diapers.  His practice was limited to Sullivan & Cromwell, and learning to practice law by working as an associate at a big New York firm is like learning how to sail by washing dishes on a cruise ship.  Criminal law is populated by people who are notably unconsoled by philosophy, and I'm sure it's far outside his interests.  He's a good liberal, so he knows the Court's criminal procedure decisions of the previous 45 years were Good Things.

But who were they good for?  The answer appears so obvious that at first it seems the only choice is between cynical wisecracks.  As the even-older Anthony Lewis wrote in an even-more-recent edition of the New York Review of Books, the new conservative Court is "hostile to ... the rights of criminal defendants". 

It's self-evident, isn't it, that protecting the rights of criminal defendants is good for criminal defendants?

At a micro level, dealing with one defendant at a time, the Supreme Court's method for protecting their rights has proved remarkably beneficial for certain individual defendants.  But on the macro level, looking at criminal defendants as a class, the picture is not nearly so clear.

Consider these drearily familiar statistics:

On December 31, 2006 —

    – 2,258,983 prisoners were held in Federal or State prisons or in local jails -- an increase of 2.9% from yearend 2005, less than the average annual growth of 3.4% since yearend 1995.
    – there were an estimated 501 prison inmates per 100,000 U.S. residents -- up from 411 at yearend 1995.
    – the number of women under the jurisdiction of State or Federal prison authorities increased 4.5% from yearend 2005, reaching 112,498, and the number of men rose 2.7%, totaling 1,458,363.

As we all know, that's a lot of prisoners.  Human Rights Watch says: "The country that holds itself out as the 'land of freedom' incarcerates a higher percentage of its people than any other country."  (Um, that's actually "land of the free.")  Even if, for the sake of accuracy, that ought to read "than any other country you could imagine yourself voluntarily choosing to live in," that's still pretty stunning.

I haven't looked hard enough to find prison population figures for 1961, but if you take a look at this chart you'll see 1961 is the base camp at the foot of Everest.  (You can find a more elegantly-presented version of the chart on page 43 of this pdf .)  Almost as soon as the Supreme Court began the federal takeover of criminal procedure in 1961, the prison population began climbing up to the sky.

If one looks only at the two variables - Supreme Court intervention in state criminal law and prison population - one would hardly be able to avoid the conclusion that the judiciary's policy has had a less-than-wholly-benign  effect on criminal defendants as a whole.

But surely that can't be right.  It must be a coincidence.  Right? 

In part, sure.  There are lots and lots of partial explanations for the weird growth of the prison population in America - which is, really, a very strange social development.  But to assert that the policy pursued by the courts isn't one of those explanations is to discount the importance of the courts themselves.  After all, if their policies don't have a real-world effect, why do they bother?

I don't think it's a coincidence at all.  And I think Dworkin actually suggests why not, though I suspect he didn't have this in mind when he talked about effectiveness and fairness.  The underlying idea of the whole judicial project since 1961 is that criminal law is a zero-sum game: that a detriment to the prosecution is a benefit to the defense, and vice versa.  Dworkin buys it: in his world-view, fairness and effectiveness in the criminal law are opposing values.  (Mind you, I'm pretty confident he hasn't actually thought about it, but that's what his second-hand rhetoric translates into.)

But life is far more complicated than that world-view allows.  What the courts have done since 1961 is decrease the risk of punishment.  Even if you're caught red-handed - hell, even if you take the police to the body - you might still walk.  Our democratic branches of government can't alter that, because the courts have decreed it to be required by the Constitution.  So our democratic branches alter a different variable - the severity of the punishment.  They increase the sentences.

This, I think, is a perfectly logical and, on the terms imposed by the Supreme Court, entirely reasonable course of action for Congress and state legislatures to pursue.  It's also socially destructive: we've raised a generation of young men who think it's normal for daddy to be in jail.  But which governmental institution first started spinning the top?

Still, I don't think we should criticize the elderly gents harumphing in the pages of the New York Review of Books  for failing to notice.  At their age, they have every right to hunker down behind their psychological defenses. 

Christopher L. Eisgruber (I don't mean to be rude, but with a last name like that, is the middle initial really necessary?) has written The Next Justice: Repairing the Supreme Court Appointments Process, a well-meaning, mildly interesting and thoroughly exasperating book. 

Eisgruber comes across as a likeable, intelligent guy aswarm with good intentions.  His basic theme is that the Supreme Court is perfect and everyone else needs to accommodate themselves to that.  The problem is, I'm not sure he understands that's his theme. 

I can't figure out who the book is written for.  Part of it is an introduction to (cue Sousa march) The Supreme Court, Paladin of Liberty, written for the semi-informed general reader.  But the concluding chapters are full of  (thoughtful, well-meaning) advice to the members of the Senate Judiciary Committee, a rather more specialized audience.  In the middle an entire chapter is composed largely of quotations from Supreme Court opinions.    Throughout, Eisgruber has smart, modest things to say. 

In short, there's an Atlantic Monthly article inside this book screaming to be let out.

Eisgruber gets real close to proposing a genuine solution to the contentious-yet-contentless confirmation hearing when he suggests that if a nominee refuses to answer certain carefully-calibrated questions, "skeptical senators would be well justified in voting against confirmation." 

This tiptoes right up to a genuine insight: confirmation hearings will become meaningful when the Senate, asserting its prerogatives as an institution, demands meaning.  If a nominee's refusal to answer means rejection, nominees will answer.  There's nothing mysterious about it.

But Eisgruber doesn't seem to realize what he's saying, because in the next chapter he tells us that "senators and the American public will have to give up the tantalizing but bogus concepts, such as 'judicial restraint,' that are now commonly invoked to evaluate nominees."  

Oh, I see.  Just reeducate everyone.  What is it that Bertolt Brecht, der Mann ohne (Redeeming) Eigenshaften, suggested to the East Germany government?  Why not just "dissolve the people / And elect another?" 

That's what's so exasperating about the book.  Eisgruber understands that political hardball will instantly end confirmation-hearing farces.  But he can't bring himself to recommend any course of action that genuinely challenges the status quo.   It's just not in his nature.  His talk about the American people giving up tantalizing concepts is just a word-processed way of drifting into irresolute silence.

It's as if Eisgruber - who, I'm sure, is the very soul of stability - has two personalities: the smart one who notices things and the conventional one who shushes the first.  And they took turns writing this manuscript.

An example: he says (several times) that Eisenhower was the last President who disregarded the ideology of his nominees, choosing justices based solely on perceived legal ability.  He also notes that two of Eisenhower's appointees, Brennan and Warren, were leaders of a Court that "rendered a series of ideologically charged decisions ensuring that no future presidential candidate [after Eisenhower] would be able to ignore the Court."   (He repeats that thought, too, in various phrasings.)

Elsewhere, Eisgruber notes that it's unlikely any future President will nominate someone from the opposing party (as both Eisenhower and Truman did), "given the Court's role and visibility in the post-Warren Court era". 

But he never ties together these various observations.   It's true that the Warren Court increased the Court's role and visibility, but that's just a polite way of saying it asserted vast new powers over the democratic branches of government, buying off Congress by giving it increased power over the states, and buying off state-court judges by giving them increased power over the other branches of their governments. 

Eisgruber notes the most obvious example of this process when he writes that for 20 years groups on both the right and the left "have cared above all else about what Supreme Court nominations will mean for the future of Roe and abortion policy in the United States."   After Roe v. Wade, there was no other way for abortion opponents to seek to change national policy.  By eliminating democratic change as an option, the justices practically insisted that all future vacancies on the Court would occasion intense political campaigns devoted to the issue.  The Court did that - it changed the nomination hearings into referenda on abortion.

The same is true of criminal law, the area of American life in which the Court has exerted the greatest influence in the past 50 years but a subject Eisgruber hardly mentions.  (Princeton men don't do criminal law, darling.   Their security guards take care of it.)

Starting during Eisenhower's second term, the Supreme Court took away a significant part of every local community's authority to order its own society.  The only way for local communities to regain the autonomy they enjoyed (and sometimes abused) in the early 1950s is to (1) ignore / work around the Supreme Court; or (2) attempt to influence the nomination and confirmation of Supreme Court justices.

Think of your favorite political cause.  The Supreme Court has left grubby fingerprints all over it, hasn't it?  You have to search hard for an unsmudged cause in modern America.  That's why I think confirmation hearings for Supreme Court nominees ought to be at least as contentious as congressional and presidential campaigns.  After all, in our post-democratic nation, members of Congress and Presidents don't have any power to make ultimate decisions about an ever-lengthening list of issues.

But although I think Eisgruber understands this, he's wholly committed to the Goodness and Rightness of all things Supreme Courtish.  The law operates like a religion (see post 332) and former Supreme Court clerks, who owe their careers to having been singled out by a justice, tend to be worshipful acolytes.  (See post 204.) 

So Eisgruber winds up saying, in consecutive paragraphs: "Unlike other federal courts, the Supreme Court has a discretionary docket.  The justices, in other words, have the power to choose which appeals they will hear.  ... The Supreme Court's docket ... require[s] the justices to make politically controversial judgments."  (My italics.) 

Freud would have made much of the juxtaposition of such  obviously contradictory sentences just a few lines apart.   (Page 28 if you're following along at home.)  It's necessary for Eisgruber's policy prescription ("try to make the best of it") to pretend that the justices have no choice but to nullify democratic choices.  But he knows that's just not true.  He's honest enough not to hide what he knows, but too successfully conventional to integrate it into his recommendations.  (See post 329.)

The late Meg Greenfield's last book, Washington, includes a taxonomy of Washingtonians that includes the Grown-Up Good Child - those handy, capable people who live to please powerful mentors.  Grown-Up Good Children prosper in  hierarchies - think of the former Supreme Court clerks that have gone on to become Supreme Court justices (Roberts, Stevens, Rehnquist, Breyer).  Greenfield put herself in that category, and I suspect Eisgruber belongs, too.   Grown-Up Good Children don't bite the hand that fed them.  

Then again, maybe it's simply the case that, after mature reflection, he approves of our reversion to a government of unaccountable elders.  After all, that's the way our ancestors did it in the Pleistocene, so evolutionary psychology supports it.  I mean, just look at street gangs, Mafia families and prestigious law firms.  You trying to tell me the similarities are coincidence?

The scientist and science writer Bob Park recently published a column in the New Scientist containing this passage:

Richard Feynman described science as "what we have learned about how not to fool ourselves". Science depends on openness: we expose our scientific findings, including the details of how they were obtained, to the scrutiny of the scientific community. This sounds like a prescription for chaos, but the result is the opposite because it reinforces the idea that science is conditional - always subject to being replaced by better information. This can be frustrating to non-scientists, who ask why science can't make up its mind, but the alternative is dogma. Openness provides a mechanism for self-correction, setting science apart from other ways of knowing. Science is, in fact, the only way of knowing. Anything else is just religion, which is all about authority.

(The column is in the locked-down part of the website, so if you're not a subscriber you're going to have to trust me in a decidedly unscientific way.)

This is just one of the ways in which law is an anti-science (see post 129 and post 14), but it may be the most important for any attempt to understand the way in which our courts distort our society.  Law - or at least the opinions of judges - is all about self-deception.  That's the point.

That sounds so negative that it's likely to provoke defensiveness, so I'll put it a more abstract way: law is about preventing yourself from thinking about reality except in terms of legal categories.  The insistence on perceiving reality in terms of a priori categories is the defining intellectual technique of American law.  (See post 137.)  It's what law professors teach. 

So Professor Miller, victim of the  cheap shot in the previous post, would say that his point had nothing whatever to do with Michael Jones shooting people in the head.  The fact that Jones shot people in the head is, in fact, entirely immaterial to the question whether his conviction for shooting them should be upheld.  You have to focus on the legal problem, as defined by the a priori categories, and blot out your awareness of any broader reality.

(It really is unfair to single out Miller, since every other law professor and judge and most practicing lawyers  accept with equal intellectual passivity that this is a reasonable way for the rulers of a modern society to process information concerning the physical well-being of society's members, or rather that its reasonableness is not open to question.)  (The law meets Park's definition of a religion.  Law professors teach theology, judges enforce orthodoxy.)

This intellectual method means that the law is not open to new information.  Or, more precisely, new information is acceptable only insofar as it can be slotted into pre-existing categories.  The metaphor of a letterpress printer's drawer is pretty exact: who needs a character that doesn't already have its own little compartment?

A quote I've seen attributed to Catherine McKinnon, but which I can't find on the Web, says that the law doesn't prohibit rape, it regulates it.  I think that's true of all violent crimes.  Yet - and this is the critical thing - the people doing the regulating (judges) would deny that they're engaged in any such activity.  And they'd sincerely believe it, too, or at least profess to, as an article of faith.

Here's a line from the Supreme Court, almost as familiar to criminal law practitioners as a Coca-Cola jingle: "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."

But look at those familiar words more closely.  The issue, in practical terms, was whether certain relevant evidence should have been concealed from the jury.  (Only relevant evidence is affected by judge-made exclusionary rules.  If the evidence wasn't relevant, it would be inadmissible for that reason alone, and the prosecution would have no reason for even offering it - or the defense for objecting to it, except on the ground that trials are tediously long enough already.)  

Judges who decide to hide relevant evidence from the jury don't describe it to themselves in those words.  They tell themselves they're engaged in "deter[ring] police misconduct by preventing the introduction of evidence obtained through police illegality." 

Look at that sentence structure.  In real life, what's happening is that judges prevent the jury from hearing evidence.  They do so in hopes - specifically, the Supreme Court's hopes - that deceiving the jury will influence the behavior of people who aren't present and may never learn about it.   But in the way judges phrase it to themselves, the wish comes first.   It's the important thing.

The Supreme Court pulled a similar trick of self-deception, only a bit more subtly, in the sentence quoted above.  By "permissibility of a particular law enforcement practice", it meant: "admissibility of evidence obtained by a particular ..."  They weren't deciding what law enforcement practices to permit; they were deciding whether to allow the jury to learn what the cops found out when they engaged in one particular practice.   Judges Photo-Shop the portrait and call it plastic surgery.

That's just the beginning of the self-deception packed into that sentence.  Whenever judges use any form of the word "balancing", what they mean is: choosing.  The Court was telling judges to choose which of the two (and there is rarely more than two - the metaphor controls the variables) "interests" he or she considers more significant. 

What, you may ask, is a "legitimate governmental interest[]"?   When you're talking about a Terry stop frisk for weapons (see post 321 and post 314), the interest in question is the earthly existence of the police officer.   When a judge "balances" governmental interests, what he's really doing is deciding the marginal value of the officer's life. 

That sounds extreme, but only because we're so used to the euphemisms that blanket the facts, as Orwell said, "like soft snow, blurring the outline and covering up all the details."  Self-evidently, in every encounter the cop's life is at greater risk if the person he is confronting has a gun, knife or club.  The cop's safety is increased if he disarms an armed person. 

With me so far?  That's really all there is to it.  The cop's safety would be maximized if he patted down everybody he came into contact with.  So if judges actually control police conduct - which judges tell themselves they're doing - then when they tell cops they're not allowed to pat down people in certain circumstances, they mean that officers mustn't maximize their safety.  They must accept a greater than minimal risk of being injured or killed. 

If the judges are competent in their calibration of risk, they're imposing only a minor marginal increase in risk.  But a small risk spread over a large population - say, 675,734 sworn officers - becomes numerically significant pretty quickly, especially to those attending the funerals.

So when judges decide cases about frisks, they're asking themselves: How many murdered policemen is too few?  And how many is too many?  How many official funerals with long motorcades is just right?

Once you strip away the fuzzy language, you can see why judges use it so obsessively.  They want to distance themselves from what they're doing.  "This isn't just a gut feeling, you know - I've weighed it.  The scales don't lie."

But this is barely scratching the surface of the superstructure of deception and self-deception the Supreme Court has built over our criminal justice system.

In Delaware, it's pretty big news that the state Supreme Court upheld the murder conviction of Michael Jones.  Shortly after a warrant was issued for Jones' arrest for homicide, he got into a car with a couple friends, one of them named Cedric Reinford:

While the three were in Reinford’s car, Jones killed Reinford by shooting him three times in the head. Page and Jones then dowsed Reinford and his car with gasoline and set it on fire. Afterwards, they went to Reinford’s house to steal drug money from a safe in Reinford’s home. There, Jones shot and killed Reinford’s fiancée, Maneeka Plant, and shot Reinford’s brother, Muhammad, in the face.  Muhammad miraculously survived and called 911 ...

You can see at once, can't you, why Professor Miller over at Evidence Prof Blog thinks it's such a shame that Jones' conviction was upheld?

(That's an unfair, nasty, cheap shot, of course: all professors think their subject is more important than the lives of people they don't know.  Besides, the whole point of the law of evidence is to prevent the jury from learning relevant information.  Expecting a professor of evidence to approve of a jury hearing unfiltered information is like expecting Bishop Ussher to embrace Agassiz's theory of the Ice Age.) 

(And, you know, Professor Miller might even be right, in the other-worldly terms in which right and wrong are debated in evidence classes and during bench conferences.  It's pipefitting: what flows through the pipe is beside the point.)

But what's really interesting about the case the meal the judge, Peggy Ableman, enjoyed at Feby's Fishery during the trial.   Here's a 2005 post from Crime & Federalism:

One witness said she told her husband that "she would get the last word" and that the man on trial before her "would get the death penalty." 

So much for a neutral and detached magistrate in that case. The defendant was subsequently sentenced to death.

Lawyers for the man filed a motion for a new trial claiming judicial bias. Judge Ableman would have none of it. Her recollection of the dinner conversation was that she was disappointed in the performance of defense counsel. Listen to part of her ruling:

"Defendant has not cited, nor am I aware of, any authority that would prevent a judge from telling her husband, 'An attorney has so botched the death penalty case that I am trying that I am going to be stuck with a ten-two jury vote to execute a juvenile." Temper, temper, judge.

So here we have a judge talking about an ongoing case in a public place, speaking in a loud enough voice for others around her to overhear and know exactly what she was talking about.   (Feby's website tells us the restaurant has a "full-service bar", and from the looks of it there's much service to savor.)  

We can have no doubt the incident happened: the judge admits as much  with her blame-the-lawyer defensiveness.  But, she later explained on the record, her use of profanity when describing the defense lawyer didn't mean she was biased against the defendant.  Oh, no.  Honest Injun, stack of Bibles, stick-a-needle-in-my-eye: she was expressing her bias against the prosecution:

My “animosity” toward [defense counsel], which would be more accurately termed disappointment, is not a reasonable basis for assuming I was biased against his client. The aforementioned instances . . . provide a more than reasonable basis for the Court to have become dissatisfied with the way [defense counsel] tried this case. That feeling, however, sprang from the Court’s judicial desire to ensure that Jones received a fair penalty hearing. I also had a strong personal desire to avoid a recommendation from the jury so strong that failure to issue a death sentence would appear to substitute my opinion of the juvenile death penalty for that of the law of Delaware and the conscience of the community. I did not intend to use my disappointment with [defense counsel] as an excuse to impose the death penalty regardless of Jones’ mitigating evidence. Instead, I was dissatisfied with [defense counsel] because his poor performance made it practically inevitable that the jury would strongly vote death, a recommendation that I would have probably had to follow regardless of my personal convictions.

In other words, she wanted to substitute her "opinion of the juvenile death penalty [Jones was 17 and 8 months when he murdered Reinford and Plant] for that of the law of Delaware and the conscience of the community."   She hoped and intended to do so.  But defense counsel's supposedly poor performance was going to make it politically difficult for her to get away with it.  The problem was so acute that she feared it would actually "appear" that she was doing what, in fact, she was doing.

Gee, no wonder she was upset.  Who can blame her?  No one likes to be held accountable for their choices.  I mean, go ask Michael Jones.  He suffered from appearances, too, such as the appearance that he killed the man he shot three times in the head.

And then the judge, apparently concerned that people might still take her seriously, added this:

She further defended her conversation because “it is simply too much to ask that a judge not utter a word to anyone about a case that may extend, like this one, for months, and to completely abstain from the support of family and friends when faced with difficult legal and moral decisions on matters of life and death.”

Now what, do you suppose, did she tell the jurors every evening when court recessed?   Do you suppose she gave the jurors "a general admonition that the jurors should not discuss the case with others"?  Of course she did.   All judges do.  Here's how a Hawaii judge did it when taking a 17-day break:

During your recesses from deliberations, when you are released to go home in the evening, you must not discuss this case with anyone or permit anyone to discuss the case with you. You must not read or listen to news accounts about this case, if there are any. You must not discuss this case with any person other than your fellow jurors.

So what Judge Ableman meant was that it is "simply too much" to expect a judge to conform to the same conduct demanded of jurors.  And, you know, she might be right.  Judges abuse jurors: they threaten to arrest them, then make them sit around dingy waiting rooms for hours, then hide evidence from then, even lie to them.   The nightly coerced vow of omertà might be compared to the tennis ball in the Far Side cartoon of the dentist who tells his patient: "Now open wide, Mr. Stevens ...  Just out of curiosity we're going to see if we can also cram in this tennis ball." 

I've long thought that one of the reasons judges are so concerned about traffic stops is the potential of a traffic stop to wreck a judge's career.  Just look at Ohio's Justice Resnick (see post 33), Arkansas's Judge Davis (see post 36) and New Mexico's own Judge Brennan.  (See post 38.)

But pretending that the Constitution prohibits police officers from pulling over distinguished-looking middle-aged men who like to dress up in black dresses is one thing (me, I prefer these Carnaby Street designs).  Pretending your car was driven by a dead person is something else.   From the Australian Associated Press:

Former Federal Court judge Marcus Einfeld will face a jury and a possible jail term after being committed to stand trial on perjury and traffic offences.

The 69-year-old faces a maximum 14 years in prison for allegedly swearing false statements that other people were driving his car when it was caught committing traffic offences between 1999 and 2006. ...

He is accused of swearing, both via statement and on oath in court, that other people, including a friend he knew to be dead, and a seemingly fictitious person, were driving his car when it was caught speeding and running a red light. ...

His barrister, Ian Barker QC, said it was "preposterous" to suggest that signing false statements to avoid traffic fines amounted to an attempt to pervert the course of justice.

He also stressed the issue of timing, saying there was simply not enough proof that Einfeld could have left Sydney's Freshwater beach, where he lunched on January 8, 2006, and made it to the Mosman speed camera where his car was photographed at 4.01pm.

The January speeding fine, which Einfeld claimed was incurred by a friend, Professor Teresa Brennan, sparked a high-profile investigation into Einfeld's driving history after it was revealed Brennan had died in 2003.

It was the second time Einfeld had claimed Brennan was driving his car, having previously blamed her for a speeding offence committed the day after her death.

Australia's Federal Court is the federal government's intermediate appellate court - would it have killed them to put the word "appeals" in the name? - so Judge Enfield was pretty high up the hierarchy when he started letting the ghosts get behind the wheel.  He was, indeed, the distinguished-looking gentleman whose stern-yet-wise-yet-compassionate-yet-arrogant-yet-learned-yet-ever-so-slightly-crackers visage you saw if you followed the link in the second paragraph.

I bet if he had to do it all over again, the judge would just declare red-light cameras unconstitutional ahead of time.

Imagine a history professor who built his career on the study of presidential press releases, viewing them not as eruptions of public mendacity or even as examples of public relations technique but as the true measure of each administration's achievements. 

To evaluate Richard Nixon's time in office, this scholar would diligently read every word that ever emanated from Ron Ziegler's office – and nothing else.  To understand the achievements of George W. Bush, our professor would carefully parse the words of Tony Snow and Dana Perino. 

If an academic rival were to publish an article questioning President Bush's sincerity, our historian could write a letter to the editor of a highbrow magazine couched in the barbed politesse of academic infighting, crushing his rival with the unanswerable riposte: a quotation from Ari Fleischer conclusively proving the contrary.

It shouldn't be hard to imagine such a professor, because that's how our legal academy operates.  When our law professors study the United States Supreme Court, they read the Court's press releases and treat them as full and entirely satisfactory explanations for the Court's exercises of power. 

When law professors conduct what they consider debates about the Supreme Court, they bandy back and forth various phrases and linguistic formulations crafted by the diligent drones of the Court's PR shop – that pool of aides known in the jargon as "law clerks," the recent law school graduates who actually draft the opinions the justices sign (and who themselves frequently become law professors, completing the circle). 

If you picture the President personally signing off on every White House press release and passing it off as his (or, perhaps, her) own work, you'll have a pretty clear idea of how the Supreme Court works.  In the world of the press release, of course, every motive is pure, every goal noble, and every policy successful.  Press releases, including judicial opinions, endlessly invite us to accept the word as the deed. 

Princeton University Press was nice enough to send me a review copy of a book devoted to the painstaking perusal of Supreme Court press releases, and I feel guilty that I haven't devoted a post to it yet.  There's such a spirit of naive yearning in the book that I find myself drawn to its author, who as provost and Laurance S. Rockefeller Professor of Public Affairs at Princeton University would doubtless find my solicitude icky.

I know what you're asking: Who, exactly, was Laurance S. Rockefeller and why did he spell his first name like that?  Well, as a young man Laurance "attended Harvard Law School for two years until he came to the conclusion that he did not want to be a lawyer", which tells you everything you need to know about him: he didn't have to worry about paying off student loans.  After that his career was the usual round of venture capitalism, crop circles, philanthropy, the Roswell incident and alternative education.

The current occupant of the Ivy-entwined Rockefeller chair, Christopher Eisgruber, has written The Next Justice: Repairing the Supreme Court Appointments Process.  Before that he was a clerk for Justice Stevens, and I'm glad to say he's appropriately grateful to his fairy godfather - although calling him a "valued mentor" on the dedication page might strike some as providing a little too much information about the value Stevens added to Eisgruber's career.

I've written about Supreme Court clerks before (see post 204), but Karen Arnold did so with far greater detail in her  Lives Of Promise: What Becomes of High School Valedictorians.   Supreme Court clerks are the valedictorians among valedictorians, the highest-achieving of the high achievers, and I don't doubt that the personality characteristics Arnold found in her Midwest valedictorians are only amped up in the 36 (or so) smartest persons in the room who get to clerk at the Supreme Court.

What Arnold found, above all, was contentment with the status quo.  The people who graduate at the top of the class are those who spend the least mental time outside the box.  The closer your brain waves resemble the pattern of windows on the school facade, the higher your GPA will levitate over 4.0.

Or, as Arnold put it (sans the piquancy of sour grapes): "Over and over again, star students told us they rose to the top partly because they were intelligent, partly because they were schoolwise, and mostly because they worked hard, persisted, and drove to achieve."  "The top students readily identified themselves as 'school smart.'  Academic talent, to them, meant the ability to excel at academic learning and school tasks like note taking, memorization, and testing."

Eisgruber - the established face of the Establishment's premier establishment - has made school-smarts a career.  And a brilliant career it is, too.  Link after link in an amazing chain of achievements, all ending up as the university president's representative at budget meetings ...   Prestigious budget meetings, mind you.   But still.  I think the apple carts of central New Jersey are safe as long as Eisgruber is around.

(Incidentally, if you were the editor-in-chief of Princeton University Press, how would you feel about receiving an unsolicited manuscript from the "chief budgetary officer of the University"?  Mad at yourself for not having solicited it?)

Eisgruber's basic take on the Supreme Court is that its press releases tell you everything you need to know.  You can judge a judge by the polished productions he chooses to send to the publisher.   So his book is filled with quotations from the justices' opinions that are presented as true-to-life, pantingly-intimate, Sylvia Plath-like confessions of what the justices were thinking - in short, as the decisions themselves, rather than as public relations justifications for them. 

(The different meanings of "decision" contribute to fuzzy thinking in the legal academy, I think: the justices decide a case, then order their clerks to write a "report of [their] conclusion", and the latter is called ... the decision.)

If you start with the conviction that everything John Paul Stevens has ever done is good - no, make that Good - and devote your massive brain power to thinking about the Supreme Court while resisting any idea that challenges that core conviction, you would come up with policy prescriptions - well, that's a bit strong - policy vague suggestions similar to Eisgruber's.

I'll talk in more detail about the book in a later post.  But in the meantime I do recommend it without reservation as a fly-in-amber keepsake of well-spoken, well-intentioned conventional legal wisdom, circa 2007. 

I was reminded of Daniel J. Martinez (see post 327) by the case of Judge Restaino (see post 326).  Soon after Martinez was acquitted of two extraordinarily brutal crimes that he almost certainly committed, setting off an entirely justified uproar, a friend of the Martinez family wrote a letter to the editor of the Santa Fe Reporter, the alternative weekly.

Unfortunately the Reporter's online archives don't go back beyond 2000 and so I can't link to or even quote from the letter.  But I remember the gist: the writer had known Daniel for years, and he was a great guy except for when he lost his temper, and that didn't happen very often.

I was reminded of that by Raoul Felder's dissent from the order determining that Judge Restaino should be removed from office.  Felder wrote:

The record establishes that respondent, after a long period of personal stress, while presiding in a domestic violence part, simply “snapped” when he heard a cell phone go off in his courtroom and engaged in what can only be described as two hours of inexplicable madness.  The record also establishes that his conduct over those two hours was a total aberration from his character and demeanor as a judge for eleven years (and previously as public defender for ten years) and that he has received the support and praise of his judicial colleagues, court personnel and community leaders.

So just as Daniel Martinez was a great guy when he wasn't mad enough to rape or shoot anybody, Judge Restaino was a fine judge when he wasn't outrageously abusing his power.  You know, I don't really have any reason to doubt either evaluation.  (Though I do note that, at least in Felder's listing, Restaino's supporters didn't include lawyers who had practiced before him.)

Felder's dissent is actually quite thoughtful and he makes the powerful point that other New York judges have managed to keep their jobs despite behavior that would shame Bob Ewell.   But he also recycles a couple tired themes. 

First: "I cannot find it within myself to destroy this individual’s professional life over this regrettable episode."  Leaving aside the one-free-bite attitude, and the hint of moral preening, how does removing a judge from the bench destroy his professional life?  Only if "professional life" is used as a synonym for "career as a judge."  By that standard, every time Felder's firm informs an associate it's time to move on, the firm is destroying that person's professional life, because his or her career at the firm is over.  Has Felder ever found it within himself to do that? 

Being a judge is a job.  All that will happen to Restaino is that he returns to his prior job, practicing law.  The very fact that he voluntarily exposed himself to all the publicity his case has garnered shows how important his current job is to him.  From his point of view, it probably feels like the destruction of his professional life.  But when the exercise of power becomes that important to a person - more important, self-evidently, than avoiding public humiliation - it's time to relieve him of it.

 Second:

I am constrained to comment on Commission counsel’s attempt to belittle respondent’s explanation that he “snapped” because of personal stresses in his life. Although Commission counsel argues that such an explanation is not believable because no single triggering event in his personal life had occurred that morning and that prolonged stress cannot explain a temporary loss of reason, I believe that simple human experience has shown that that is simply untrue.

I don't know if Felder has ever been a judge, but he's mastered judge-speak: he's "constrained" to comment in the sense that that word means "want."   And I rather doubt that Commission counsel would have described his argument as an "attempt to belittle" Restaino's explanation. 

It's classic judge-sniping to say a person tried but failed to accomplish something that in itself is disreputable.  My favorite example is Justice Brennan on a majority opinion written by Justice Rehnquist in a criminal case: "The Court's attempted obfuscation in Part II, ante, at 135-139, of its total disregard of the statutory mandate is a transparent failure." 

You can practically hear Rehnquist muttering, "Foiled again!  I thought that this time, at long last, my disregard of the statutory mandate would be sufficiently obfuscated to slip past him!"  In the same way, no doubt Commission counsel said in a voice thick with frustration: "Curses!  I thought I could belittle the judge's explanation, but it remains the same size as when I began!"

In real life, probably Commission counsel was actually arguing something more along the lines of what the Commission eventually declared in its majority opinion: "every judge is obliged to set aside his or her personal problems upon entering the courtroom".   

You only have to scratch the surface of Felder's remark to see something else.  Restaino's defense, in essence, was that he shouldn't have been on the bench at all that day, because he was mentally unfit to perform the duties of his office.  That was very like Florida Judge Sloop's defense of his similar behavior (he ordered the arbitrary imprisonment of a bunch of people called for jury duty) on the ground that his mental handicaps rendered him incapable of professional competence.  (See post 87.) 

I sympathize with anyone who's feeling overwhelmed and stressed-out on the job.  But when those feelings become too huge to contain within the vessels of our skins, it's time to look for another job.  Mental or emotional incapacity is a reason for removing a judge from a position he can't handle, not a reason for keeping him there.

A friend of mine once got himself elected district attorney in a border-South state.  On his first Monday in office, he asked for a rundown on the weekend's mayhem and was told: "Not much, just another stabbing down in N-----town." 

It was an eye-opening moment.  My friend discovered upon inquiry that for as long as anyone could remember the office had never treated Black-on-Black violence seriously: premeditated murders were pled down to manslaughter, manslaughter to battery, battery to disorderly conduct, domestic violence to sleep-it-off-in-a-cell. 

This was the early 1980s, which many of us (rather strangely) considered post-Dark Ages.  My friend changed the policy, as well as the workaday vocabulary of the office, and even managed to serve two full terms before being voted out.  But the attitudes he discovered in the woodwork of the DA's office were by no means unique, and they haven't remotely died out.  They've just camouflaged themselves.

(Really, check out that last link to Desiree Palmen's site.)

There's more than a trace of that attitude in the unthinking vaguely-liberal view that judges are "assisting minorities with positive measures" when they make it easier  for the violent to hurt others without risk to themselves.  (See post  325.)   Weren't the racist prosecutors in my friend's office equally assisting Black men who killed other Black men?  The underlying idea isn't very far from "life is cheap in the Orient."

Fifteen years ago, there was a much-publicized rape and murder in Santa Fe.  The unusual thing is that each offense involved a different victim.  This is how the Tenth Circuit described the basic events:

At approximately 3:00 a.m. on August 8, 1992, [pharmacist Chester] Radecki awoke to the sound of a woman screaming outside his bedroom window in Santa Fe, New Mexico. He looked out the window and heard more screaming and the sound of someone walking around outside. Shortly thereafter, Deputy Barela arrived nearby in a police car with lights flashing. Mr. Radecki left his home, got in his car, and drove to the scene.

When Deputy Barela arrived on the scene, a motorcycle lay on the side of the road. Eric Trujillo drove up in a tow truck. Deputy Barela detected a man in the bushes, and with his flashlight recognized him as Daniel Martinez. Martinez staggered out of the bushes. Martinez, who appeared to be intoxicated, told Deputy Barela and Trujillo that his girlfriend had run him off the road, causing him to wreck. Deputy Barela began to look around the area for other vehicles or injured persons.

Mr. Radecki arrived in a robe carrying a flashlight. He told Deputy Barela that he lived nearby, and that he had heard screams, as if a woman were being raped. Deputy Barela and Radecki explored the scene with their flashlights, with Martinez close behind. When Deputy Barela shined his flashlight on a car in the bushes, Martinez tried to grab Deputy Barela's nine millimeter semiautomatic pistol. The two men wrestled for control of the gun. Deputy Barela yelled to Radecki, "Hit him with your flashlight. Hit him. Get him off me."

It is unclear whether Radecki hit Martinez with his flashlight. In response to Deputy Barela's command, however, Radecki approached the struggling pair. At that point, Martinez wrested the gun away from Deputy Barela, who then fled to the bushes. Martinez turned and shot Radecki in the chest, killing him.

I'm not absolutely sure if fleeing to the bushes is a technique taught in the Academy.  Be that as it may, Martinez was acquitted of both the murder and the preceding rape - although the state paid half a million for supplying the gun that killed Mr. Radecki.

(Martinez learned the only lesson a violent thug could possibly learn from his acquittal: getting arrested isn't something to be feared.  Predictably, he almost immediately got himself arrested for an entirely unrelated offense, and this time the dice came up snake eyes.)

That's an extreme (and notorious) example, but in general Santa Fe juries are very reluctant to convict.  One reason, I'm convinced, is that the place is crawling with well-to-do, vaguely liberal newcomers.  Santa Fe County's population has tripled since 1960, which is pretty remarkable when you consider the cost of moving in - the average house costs  $81,300 more than the average for the state as a whole (and the latter figure, of course, is inflated by Santa Fe County's contribution).  The people who move to Santa Fe can afford their Land Rovers.

"Tolerance" can mean respecting the beliefs of others, but it also means "the allowable deviation from a standard".  When Santa Fe's newcomers serve on the juries that allow people like Daniel J. Martinez to indulge in their deviations from the standards of behavior established by the criminal law, it's in part because they perceive the violence as part of the cool indigenous culture with its unique traditions.  "You have to respect their customs, man.  You can't judge them by the same standards as us."

Which, of course, is much easier to say if you're living on three acres on the east side.